Citation Nr: 1017521
Decision Date: 05/12/10 Archive Date: 05/26/10
DOCKET NO. 07-06 651 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a low
back disability.
2. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a
right foot and heel disability.
3. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a
bilateral knee disability.
4. Entitlement to service connection for a right leg
disability.
5. Entitlement to service connection for a bilateral hip
disability.
6. Entitlement to service connection for a right elbow
disability.
7. Entitlement to service connection for a cervical spine
disability.
8. Entitlement to service connection for pseudofolliculitis
barbae.
9. Entitlement to service connection for hemorrhoids.
10. Entitlement to service connection for erectile
dysfunction.
11. Entitlement to service connection for a right ankle
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. Conner, Counsel
INTRODUCTION
The appellant served on active duty from July 1978 to
September 1981.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from a September 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Under the Veterans Claims Assistance Act of 2000 (VCAA), VA
is required to obtain relevant records from a Federal
department or agency, including VA clinical records. See 38
U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2009).
Indeed, VA is required to make "as many requests as are
necessary" to obtain such records and may end its efforts
"only if VA concludes that the records sought do not exist
or that further efforts to obtain those records would be
futile." Cases in which VA may conclude that no further
efforts are required include those in which the Federal
department or agency advises VA that the requested records do
not exist or the custodian does not have them. Id.
In this case, the appellant has reported that he received
treatment for all of his claimed disabilities at the Waco and
Temple VA Medical Centers from November 1981 to date. See
e.g. November 2005 Statement in Support of Claim. The record
on appeal, however, contains only records corresponding to
the period from January 1997 to August 2006.
The Board acknowledges that the RO has made repeated requests
to the Central Texas Health Care System for these records.
In fact, the record shows that the RO made five requests for
these records between January 2006 and August 2006.
Inexplicably, the only records provided to the RO in response
to these requests were dated in January 1997. The Central
Texas Health Care System has not indicated that additional
records do not exist or are not in their custody. In fact,
the Board's review of the record currently on appeal reveals
specific references to earlier treatment at these facilities
in 1992 and 1996.
Although the Board can readily understand how RO personnel
could have concluded that a sixth request for the appellant's
clinical records would be an exercise in futility, the
pertinent regulation specifically defines futility, in this
context, as when the "the agency advises VA that the
requested records do not exist or the custodian does not have
them." Given that the RO has been provided no response
whatsoever regarding the status of the requested records,
additional actions are unfortunately necessary.
Accordingly, the case is REMANDED for the following action:
1. The RO should request records of the
appellant's treatment at the VA Medical
Centers in Waco and Temple, Texas, for
the period from November 1981 to January
1997, and from August 2006 to the
present.
The RO must continue its efforts to
locate such records until it is
reasonably certain that such records do
not exist or that further efforts to
obtain those records would be futile. In
the event the information is not
available, a written statement to that
effect should be included in the record
and the RO must provide the appellant
with notice of that fact as required by
38 C.F.R. § 3.159(e).
2. After the above development has been
completed, and after conducting any
additional evidentiary deemed necessary
as a result of the additional records
received, the RO should review all the
evidence of record in readjudicating the
appellant's claims. If any claim remains
denied, the appellant and his
representative should be provided with a
supplemental statement of the case and
the appropriate opportunity to respond.
The case should then be returned to the Board for appropriate
appellate consideration, if in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).